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Friday, October 28, 2016

Decedent died in China, leaving assets in New York corporations. Decedent's mother, who is the administratrix of the estate, sought to take deposition of the decedent's girlfriend and business partner regarding the New York assets. The business partner objected, noting that she is currently residing in China and is unable to travel to U.S. for in-person deposition. The administratrix then sought leave of the court to depose the business partner in China.

Noting that China is a signatory to the Hague Evidence Convention, the court granted the leave to issue letters rogatory to China's Central Authority, pursuant to the Evidence Convention.

Takeaway:

In a nice change of pace, here is an example of a U.S. court actually following the Hague Evidence Convention. This is likely because this is a state court case--in cases involving the Federal Rules of Civil Procedure, the U.S. Supreme Court has ruled in Aerospatiale that the Hague Evidence Convention is not the exclusive means of taking extraterritorial discovery.

This case opens up another interesting question: why does the New York court have to be involved here at all? The estate is in China and is being administered out of China. The person who controls the decedent's asset is also in China. New York court's interest lies with the fact that those assets are located in New York, but is this really enough? Does it even make sense to require the Chinese administratrix to go through the Hague Convention procedure (which is time-consuming and cumbersome,) just to conduct discovery in China?